dissenting:

The principal holding of the court is that construction of the Libby reregulating dam does not have authorization or consent from Congress. As I can agree with neither the reasoning used to reach that conclusion nor the majority’s analysis of the precedents bearing on the case, I respectfully dissent.

At the outset, it should be understood that the language of 33 U.S.C. § 401 assists us in resolving certain preliminary matters, but it does not answer the ultimate question we face. It is relevant, though not especially helpful, in determining whether or not the plaintiffs have a private right of action to challenge these expenditures as unauthorized. 1 The language is relevant also to indicate that agencies of the federal government, as well as states and private entities, must obtain consent from Congress prior to constructing a dam in a navigable river. See United States v. Arizona, 295 U.S. 174 , 55 S.Ct. 666 , 79 L.Ed. 1371 (1935). Thus the Corps of Engineers may not, and it does not, rely for its authority to proceed upon some general authorization from Congress not addressed to this specific project. Beyond these questions, however, the statute provides little assistance in resolving the principal issue confronting us, which is whether Congress has in fact approved the expenditures in question. The majority deems the word “consent” in the statute to mean “authorization,” and I have little objection to this translation except to note that it simply restates the question without answering it. The problem then is whether or not Congress has authorized the Corps to spend funds for construction of this project. Based on the legislative history before us, I conclude it did.

Before the fiscal year 1978, Congress made several specific appropriations for the Libby Additional Units and Reregulating Dam project (LAURD), which consists of construction of the reregulating dam and additional power units to be installed in the main dam. 2 The Corps of Engineers now proposes to let contracts pursuant to the further appropriation of $10,000,000 made in fiscal year 1978. That appropriation addressed specific aspects of the construction for this project, as is shown in the margin. 3

*749 I find little support for the majority’s conclusion that appropriations for specific aspects of reregulating dam construction does not constitute consent for the expenditures. The majority suggests that Congress may have been laboring under a mistake m voting on the appropriation, since the Corps stated before various congressional committees that the reregulating dam was authorized by the 1950 Flood Control Act. 4 I *750 suppose the majority’s reasoning is that if Congress had been alerted to the ambiguous nature of the asserted prior authorization, it would not have passed the appropriation measure in question here. There is no evidence supporting that conclusion. Even assuming that there was a procedural flaw because Congress did not follow the normal course of making a separate declaration to authorize the project before appropriating money for its construction, the majority gives no reason at all for departing from the general rule that the courts may not inquire into whether or not the internal procedures of Congress were correctly followed, precedent to the enactment of a law. Field v. Clark, 143 U.S. 649, 672, 676-77 , 12 S.Ct. 495 , 36 L.Ed. 29 (1892). The enactment of a statute is conclusive in the courts on the issue of regularity in legislative proceedings.

Rule 21, Manual of House of Representatives, specifies that an appropriations measure is out of order unless the expenditure is previously authorized by law. 5 The prescribed remedy for violation of the rule is that if a point of order is raised, the bill will not be heard. It does not follow that an appropriations measure heard out of order and passed without objection is not genuine congressional approval of the expenditure. Congress would no doubt be surprised to learn that a private party can prevent expenditure of appropriated federal funds by asserting a violation of its own internal procedures.

No great danger of unchecked legislation by appropriation results from what I suggest should be this court’s refusal to oversee congressional adherence to its own rules. Congress is fully capable to control the conduct of its members and to remedy as it deems appropriate any previous enactment it finds unwise.

The majority requires, without any indication of the standards to which Congress must conform, some degree of formal authorization before it would permit an agency to implement appropriations. Appropriations for construction projects such as LAURD are voted upon in conjunction with other similar projects. The record in this case suggests that little or no extended discussion is given on the floor of the Congress to any particular project. Even a specific statement on the floor by a congressman that a vote for appropriations on a particular project is intended to show authorization, either in itself or as a ratification of prior ambiguous expressions, might be dismissed under the majority’s view as being the opinion of one legislator rather than the will of Congress. In short, it is difficult to imagine that the majority has not decided the question it purports to avoid, namely, whether appropriations as a general rule can constitute authorization.

I believe that we-can find adequate independent expressions of congressional intent to authorize the project in the particular circumstances of this case. The express recognition in 1950 that a reregulating dam might be necessary; express authorization and appropriations for additional turbine units in the main Libby dam that could not operate without the reregulating dam; statements by the Corps in congressional hearings and reports, circulated to congressmen before they vote on an appropriations bill, that LAURD was authorized by the Flood Control Act; and appropriations for work on the reregulating dam, justify the conclusion that Congress considered that proper authorization had been given.

*751 While I am somewhat reluctant to say that an appropriation always satisfies the requirements of section 401, the few cases which have addressed the point tend to support that conclusion, and they show that the appropriations authorize the disputed expenditures in this case. In United States v. Right to Use, etc., Land, 484 F.2d 1140 (4th Cir. 1973), the issue was whether the Secretary of the Army had authority to condemn certain property. A statute denied the Army authority to acquire real property unless the acquisition was “expressly authorized by law.” 10 U.S.C. § 2676 . The Army argued that the Appropriations Act of January 11, 1971 constituted authorization since it provided “for expenses necessary for . . . lease, and operation of equipment, as authorized by law.” Army officials, in testimony before appropriations committees, had stated their intention to use some of the requested funds to acquire the property in question. The court held, “[A] general appropriations act provides a sufficient basis for condemnation if Congress intended the act to authorize the acquisition.” Id. at 1142 . The court reasoned:

The case is in point here, 6 and the two Ninth Circuit cases on which it relies seem to undermine the majority’s position.

In United States v. Kennedy, 278 F.2d 121 (9th Cir. 1960), the Secretary of the Interior sued to condemn land within a national park. The court found no authorization statute applicable to the tract in question. Id. at 122 . It then held that the appropriations act which supplied funds for, among other things, “acquisition of lands” by the National Park Service, provided the necessary authorization. 7

Operation of 33 U.S.C. § 401 was addressed in United States v. Arizona, 295 U.S. 174 , 55 S.Ct. 666 , 79 L.Ed. 1371 (1935). At issue was the construction of Parker Dam, a project Congress had not authorized by the appropriation of monies or in any other manner. The dam was to be financed entirely by the Metropolitan Water District of Southern California. The United States brought suit to enjoin the State of Arizona from interfering with the project. The court concluded there was no congressional approval for the project and dismissed the Government’s suit. In a discussion with implications for this case, the court referred to Laguna Dam, a completed project cited by the Government to support the proposi *752 tion that the Parker Dam was also authorized. The court agreed that independent authorization of the Laguna project was doubtful, but stated, “Congress has made appropriations for the benefit of the project of which it is a part, and so recognized and approved the building of the dam. Wisconsin v. Duluth, 96 U.S. 379, 386 , 24 L.Ed. 668 .” This is an explicit recognition that appropriation of funds may constitute requisite congressional consent for construction of a dam, as is the Court’s decision in Wisconsin v. Duluth, 96 U.S. 379, 383-86 , 24 L.Ed. 668 (1877).

The majority’s opinion here appears to rest in large part on a misperception of the relevance of TVA v. Hill, 437 U.S. 153 , 98 S.Ct. 2279 , 57 L.Ed.2d 117 (1978). There is no question that Tellico Dam, the project at issue in the case, was expressly authorized and funded by appropriations, and it was unnecessary to consider 33 U.S.C. § 401 . The Court held that Congress, by its express authorizations and appropriation of funds for the project, did not intend to repeal by implication the clear substantive provisions of other statutes. The case deals with the relationship of project authorization to the mandates of other federal statutes, not with the manner in which Congress declares consent under section 401. In the case before us, no one argues that a finding of consent under section 401 would by implication repeal provisions of the Endangered Species Act or the National Environmental Policy Act. For similar reasons, Hill’s discussion of the role of committee hearings and reports in interpreting congressional intent, see 437 U.S. at 189-92 , 98 S.Ct. 2279 , has no bearing on this case.

Greene v. McElroy, 360 U.S. 474 , 79 S.Ct. 1400 , 3 L.Ed.2d 1377 (1959), which is the second featured precedent of the majority opinion, is not relevant either. At issue was the validity of a security clearance program implemented by the Defense Department. The court simply held that various peripheral statutes and general congressional appropriations for security programs did not imply approval of the specific procedures, which were of doubtful constitutionality. The court noted that the procedures were not before congressional committees which considered the appropriations question. Id. at 505 , 79 S.Ct. 1400 . D.C. Federation of Civic Associations v. Airis, 129 U.S.App.D.C. 125 , 391 F.2d 478 (1968), is also inapposite. That opinion held only that a congressional lump sum appropriation for street and highway construction in the District of Columbia did not authorize the district to disregard its own procedural requirements for planning and construction, requirements entirely consistent with the appropriations measure. Similar considerations distinguish other cases such as National Audubon Society v. Andrus, 442 F.Supp. 42 (D.D.C.1977) (appropriations bill does not ratify an otherwise insufficient environmental impact statement).

The authority most closely in point to support the rationale of the court is Atchison T. & S. F. Ry. v. Callaway, 382 F.Supp. 610 (D.D.C.1974), vacated on other grounds, 431 F.Supp. 722 (D.D.C.1977). While it might be possible to distinguish Callaway on narrow grounds, broad language in the opinion does conflict with my view of section 401. The reasons set forth above, including the controlling law of this circuit, point rather conclusively against the result reached by the majority, and I would not follow the decision of the.district court in the Callaway case.

I acknowledge that, from one perspective, there are sound arguments favoring a two-step procedure, first authorization and then appropriation, so that Congress can consider the substantive justification of a project separately from the fiscal consequences of funding it. It might be argued that a project which passes this two-stage procedure is a more reliable expression of congressional approval for the entire project. On the other hand, it cannot be doubted that appropriation hearings are often the framework for a detailed analysis of the costs of a project and of the necessity and the wisdom for incurring those costs. If Congress concludes that a project should be postponed or terminated because it is no longer needed, it may simply decide not to continue its funding. Thus, it is unclear to *753 me what one gains by requiring separate authorization as a necessary element of consent, even if this circuit’s precedents permitted such a rule. However desirable it might be for the courts to enjoin expenditures of appropriated funds where it thinks there are substantial defects in the authorization process, I would not impose such a sweeping requirement without an express declaration from Congress that it wants us to undertake this policing function.

Under either the majority view or that expressed in my dissent, Congress can by further law announce its intent with regard to this project. Conceding the question before us to be a close one, I think that proper respect for the actions of the legislative branch of the Government requires us to permit expenditure of the funds that it has specifically appropriated, given all of the circumstances in this case.

In view of the majority’s disposition, I find it unnecessary to consider whether or not the EIS filed for this project was in full compliance with the requirements of the National Environmental Policy Act. For the reasons expressed above, I dissent from the judgment of the court.

. This difficult question is not addressed by the majority. I do not discuss it in detail because 1 find plaintiffs’ challenge without merit on other grounds. See Red Star Towing and Transportation Co. v. Department of Transportation, 423 F.2d 104, 106 (3d Cir. 1970) (no private right of action under 33 U.S.C. § 401 ). See also Hooper v. United States, 331 F.Supp. 1056, 1058 (D.Conn.1971). Cf. Guthrie v. Alabama By-Products Co., 328 F.Supp. 1140, 1148 (N.D.Ala.1971), aff’d 456 F.2d 1294 (5th Cir. 1972), cert. denied, 410 U.S. 946 , 93 S.Ct. 1352 , 35 L.Ed.2d 613 (1973). See generally Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975). But see Sierra Club v. Morton, 400 F.Supp. 610, 622-25 (N.D.Cal.1975).

In Alameda Conservation Association v. California, 437 F.2d 1087 (9th Cir.), cert. denied, 402 U.S. 908 (1971), this circuit stated that a challenge under 33 U.S.C. § 403 was sufficient to “invoke the jurisdiction of the court.” Id. at 1094 . Possibly the court’s holding was only that the plaintiffs in question had standing to bring the lawsuit.

. After passage of the Flood Control Act of 1950, Congress since 1952 has appropriated money for the LAURD project every year except 1955-60. Although the record is unclear, the first appropriation directed specifically at the reregulating dam appears to have been in 1973, when $400,000 was appropriated for planning of the reregulating dam.

. The appropriation involved in this case is for fiscal year 1978. During Public Works for Water and Power Development and Energy Research Appropriation Bill: Hearings Before a Subcommittee of the Committee on Appropriations, 95th Cong. 1st Sess. 1762 (Feb. 22, 1977), the appropriations were described by the Corps as follows:

*749 FISCAL YEAR 1978: The requested amount o $10,000,000 will be applied as follows!

AMOUNT

Continuation land acquisition $1,200,000

Initiate relocation of railroad and road 1.605.000

Initiate reservoir clearing and project aceces rosds 1.215.000

Initiate procurement of multilevel Intake structures generators and governors 2.200.000

Continue procurement of turbines 550.000

Continue cultural resources preservation 260.000

Relocate U.S. Forest Service sanitary facilities at Canoe Culch 170.000

Engineering and Design 2,000,000

Supervision and administration 800.000

TOTAL $10,000,000

The recent appropriations history of the reregulating dam project is provided in the following chart, introduced by the Corps at id. at 1765:

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. References to the reregulating dam may be found in: S.Rep. No. 93-615, 93d Cong., 1st Sess. 64-67 (1973); Public Works for Water and Power Development and Energy Research Appropriation Bill, 1977: Hearings Before a House Subcommittee of the Committee on Appropriations, 94th Cong. 2d Sess. 1589 (Feb. 24, 1976); Id.: Hearings Before the Senate Com *750 mittee on Appropriations, 94th Cong., 2d Sess. 1379 (Feb. 24, 1976); Id.\ Hearings Before the Senate Committee on Appropriations, 94th Cong., 2d Sess. 199 (May 26, 1976); Id., 1978: Hearings Before a House Subcommittee of the Committee on Appropriations, 95th Cong., 1st Sess. 1637, 1761-65; Id.: Hearings Before the Senate Committee on Appropriations, 95th Cong., 1st Sess. 1964-65, 1995-96, 2074-77, 2192 (March 2, 1977); Id. at 212 (May 24, 1977); Conference Report on H.R. 14236, Cong. Rec. H6831 (June 25, 1976); Conference Report on H.R. 7553, Cong.Rec. H7519 (July 20, 1977).

. House Rule XXI(2) provides in part:

. Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 749 (E.D.Ark.1971), aff'd on other grounds, 470 F.2d 289 (8th Cir. 1972), is not directly in point but is nevertheless relevant. One of the plaintiffs claims was that although a dam project had been originally authorized, the Corps was proceeding in excess of, and in violation of, that authorization. See id. at 754. In dismissing plaintiffs complaint as to this count, the court stated:

Id. at 754-55.

. In Polson Logging Co. v. United States, 160 F.2d 712 (9th Cir. 1947), the Secretary of Agriculture instituted eminent domain proceedings to acquire land “for the purpose of a road intended to service a national forest.” Id. at 713 . The Secretary was authorized in general language to administer the national forests, 16 U.S.C. §§ 473-482 . The court held that “statutory authorization to procure real estate may be evidenced by the making of an appropriation as well as by a specific authorization to acquire.” 160 F.2d at 714 . It concluded that general appropriations for expenses necessary for use, maintenance, and improvement of the park system authorized the taking in question. Perhaps the case is distinguishable in that the Secretary had prior general authority to operate the parks.